Pain And Suffering Claims

December 23, 2016

Louisiana Court of Appeal Highlights Procedure for Workers’ Compensation Claims

worker-from-luxor-1241068 In Louisiana, the Workers’ Compensation Act allows injured employees to recover workers’ compensation benefits from their employer. This act establishes a medical treatment schedule and procedure under which an injured employee can request authorization for medical treatment from his or her employer. A recent decision of the Louisiana Third Circuit Court of Appeal discusses these specific procedures, and how injured employees may appeal denials of requests for medical procedures.

Jacquenette Guidry, a registered nurse, injured herself on her job at American Legion Hospital. Her orthopedic surgeon, Dr. Mark McDonnell, submitted a Form 1009 Disputed Claim for Medical Treatment seeking approval from the Office of Workers’ Compensation Medical Director to perform a lumbar surgical procedure Guidry. The Medical Director, denied the requested procedure in a Medical Guidelines Dispute Decision (“MGD”). The MGD stated that the documents presented by Dr. McDonnell did not support approval of the requested services. Specifically, the clinical findings, natural history of the disease, and diagnostic tests did not support the requested services.

Mr. Guidry appealed the Medical Director’s decision to the Office of Workers’ Compensation, putting forward a Form 1008 with an addendum outlining the reasons why the denial was erroneous. After a hearing, the Workers’ Compensation Judge (“WCJ”) held that there was clear and convincing evidence that the Medical Director erroneously denied Mr. Guidry’s request by failing to consider the guidelines under which the request was made. The WCJ overturned the Medical Director’s decision and approved the requested procedure.

December 20, 2016

Compromise in Louisiana Worker’s Compensation Claim Leads to Moot Issues on Appeal

by Berniard Law Firm

rusty-ladder-1478523 Many workers in Louisiana are exposed to dangers on the job. An injury that occurs during the scope of employment often leads to more problems than just the physical turmoil following the injury. An employee might be denied payment for medical expenses, may face mental and emotional anguish, or could be rendered permanently unable to work. In order to have a successful worker’s compensation claim, an employee must be able to prove that the accident occurred within the scope of employment.

In Louisiana, case law holds that the employee was acting within the scope of employment if the employee was present at the site of the occurrence of the accident as a requirement of the employment. See La. Rev. Stat. Ann. §23:1031. In case that serves as a good example of some of the issues that can pop up in a worker’s compensation claim, Gwendolyn Grady was able to prove that her presence on a ladder at work, which resulted in a wrist injury when she fell, was within the scope of her employment.

The Office of Workers’ Compensation awarded Grady supplemental earnings benefits and medical benefits as reasonably associated with her claim. An employee is subject to the award of supplemental earnings benefits if the employee is unable to earn at least 90 percent of the

December 18, 2016

Car Crash on Louisiana Highway Shows Importance of Presenting Accident-Related Medical Records

by Berniard Law Firm

Classical spectacle on eye chart Car accidents happen all the time in Louisiana, but not all accidents cause injuries. Unfortunately, that wasn’t the case in Tangipahoa Parish, Louisiana, when Joseph Lohenis found himself rear-ended on Highway 1249 by a vehicle owned by Tammy Rousse. Lohenis’ son was driving the car and Lohenis’ wife was in the passenger seat. Lohenis himself was sitting in the back seat of the car, wearing a lap seat belt. The rear-end collision caused Lohenis’ body to move forward and hit the console, and then move backward, where the back of his head and neck hit the truck’s back glass window.

Lohenis filed a lawsuit to recover damages for the aggravation of pre-existing neck and back injuries. The aggravation of those injuries allegedly occurred due to the car accident. In a bench trial that was focused solely on the issue of the amount of damages to be awarded, the trial court awarded Lohenis $47, 857.50 in damages. The defendant appealed.

In the appeal, the defendant claimed that the trial court erred in assigning the amount of general damages awarded to the plaintiff. In addition, the defendant claimed that the trial court erred in admitting into evidence third-party medical records as a basis to discredit Lohenis’ neurosurgeon. The second error was that the trial court allegedly erred in finding that Lohenis proved an aggravation of pre-existing injuries beyond two months following the accident. The third error asserted by the defendant was that the trial court used the incorrect mathematical formula to calculate damages awarded to Lohenis. Lasty, the defendant asserted that the trial court was incorrect to find that Lohenis would be entitled to damages for loss of consortium when he did not have a loss of consortium claim in his original petition.

December 15, 2016

Court of Appeal Discusses Fraud and Forfeiture in Hammond Employee’s Workers’ Compensation Claim

by Berniard Law Firm

money-man-3-1190250 When an employee is injured on the job, he or she may be entitled to workers’ compensation benefits. However, if an employer can show that the employee intentionally lied to receive extra reimbursement for a workers’ compensation claim, the employer will not have to pay any benefits that it would otherwise owe to that employee. A recent case out of Hammond, Louisiana, discusses the standard used in determining whether an employee intentionally committed fraud when filing for mileage reimbursements.

In September 2011, an employee of Sanderson Farms (SF) was injured during a work-related accident. SF paid the employee indemnity benefits following the accident. But in December 2011, it terminated those benefits before the employee was scheduled to return to work. After returning to work, the employee continued to work for Sanderson Farms for another month. Then, in May 2012, the employee filed a claim against Sanderson Farms seeking to recover workers’ compensation benefits for the injury he sustained while on the job. Sanderson Farms denied the employee had a present work-related disability and maintained that the employee was not entitled to further indemnity benefits or medical treatment. Sanderson Farms also raised the affirmative defense of fraud, claiming the employee forfeited his right to all benefits when he submitted mileage reimbursement in excess of the actual distance he traveled in visiting various healthcare providers.

The Office of Worker’s Compensation held a three-day trial focusing on SFs’ fraud defense. In support of the fraud allegation, Sanderson Farms sought to prove that the employee lied about the amount of miles he traveled to and from the 15 doctors’ appointments he attended from September 2011 to November 2011. It is unlawful for an employee to willfully make a false statement or representation for the purpose of obtaining any worker’s compensation benefits. An employee violating this law forfeits any right to workers’ compensation benefits. The forfeiture statute must be strictly construed because forfeiture of benefits is a harsh remedy. See Our Lady of the Lake Regional Medical Center v. Mire, 142 So.3d 52 (La. Ct. App. 2014). As such, if an employer fails to prove even one element of the forfeiture statute, it will not be able to avoid liability in a workers’ compensation claim. Here, in order for SF to prove its fraud allegation it had to demonstrate that the employee willfully lied about where he was living and the distance he traveled to and from his medical appointments in an attempt to receive more money for mileage reimbursement than he was due.

December 14, 2016

Baton Rouge Based Furniture Rental Company Let the Bed Bugs Bite

by Berniard Law Firm

bed bugs There are rules involved in the evidence that a court can allow into a case, even when the case revolves around something as small as a bed bug. If a party believes that the rules have been violated, they can appeal the case and have a higher court review the evidence to make sure nothing inappropriate had an effect on the case.

In this case, the plaintiff, temporarily residing in Baton Rouge for work, decided to rent a twin mattress, box spring, and bed frame from a furniture rental company. The apartment complex he was staying was brand new, and he was the first occupant.

A day after renting the furniture, the plaintiff developed a skin condition that quickly spread “from his earlobes to his toes.” Thinking he had a rash, he sought treatment at Lake After Hours, where they prescribed an over the counter cream for his “rash, papules and vesicles” which gave him lesions.

December 12, 2016

Bogalusa Fire Department Made to Pay Workers Compensation for Fireman’s Heart Condition

by Berniard Law Firm

heart-attack-1306407 Don’t get burned by worker’s compensation failing to pay for your injury. Make sure that you understand what your rights are whenever you file a worker’s compensation claim. Clinton Miley, a firefighter with the Bogalusa Fire Department, suffered from paroxysmal supraventricular tachycardia (PSVT) after 19 years on the job. He looked to a Louisiana law known as the Firefighters Heart and Lung Statute to prove that his injuries were caused by his job as a firefighter.

The Firefighters Heart and Lung Statute creates the assumption that any heart or lung problem developed by a firefighter after 5 years of service was caused by being employed as a firefighter. La. R.S. 33:2581. Miley had worked at the Bogalusa Fire Department in Louisiana from July of 1993 until January of 2012. On May 12, 2010 Miley sought treatment for chest pain and was diagnosed by his doctor with PVST. PVST is traditionally viewed as a congenital hereditary condition, leading the Fire Department claim that it should not qualify under the statute.

The trial court found that Miley’s disease qualified under the statute, and that if Miley could prove the condition prevented him from working he should be entitled to compensation. This finding lead to an appeal made by the fire department which claimed that because PVST had not been traditionally classified as a disease falling under the Firefighter Heart and Lung Statute. They stated that the amount of time it took for Miley’s pain to occur to coupled with the fact that he had a family history of heart disease kept him from qualifying for benefits under worker’s compensation.

December 11, 2016

Make No Mistake, Medical Testimony Is Required For Juries To Award Damages For Future Medical Expenses

by Berniard Law Firm

car-accident-4-1546893 Car accidents are scary. When individuals make the choice to take on a personal injury lawsuit there is a lot of time that goes into those cases. After expending all that time and emotional energy, people want to feel like the verdict they received was fair, or at the very least compensates them for the injuries they incurred. The jury’s job is to listen to all the facts, be instructed on the law and make a decision. Many people think that once a jury renders a decision, that it is final. However, in some cases an individual can appeal to a higher court if they felt as though the jury award of damages was abusively low. That is exactly what a woman in the Parish of Lafayette, Louisiana did and it worked, partly.

Nicole Barras was involved in a car accident where she sustained multiple bodily injuries. She sued the driver of the other automobile and pursuant to the jury decree, received a payment from his insurance in the total amount of $55,491.96.

Children and spouses of persons injured by the negligence of another may raise loss of consortium claims. These claims compensate the family members of the injured person for spousal or parental affection and guidance that was lost because of the injury. See Ferrell v. Fireman’s Fund Ins. Co., 696 So. 2d 569 (La. 1997). Barras’ husband and five minor children received $6000 total in damages for their loss of consortium claims because Ms. Berrar could not guide her children or help her husband with family matters.

December 10, 2016

Fax Filing of Lawsuits in Louisiana- A Precautionary Tale

by Berniard Law Firm

office-4-1484175 Following proper procedure is critical when it comes to preserving your legal rights. While some rules might seem a bit harsh the best lawyers know the rules and will make sure you do not lose your case simply because you did not dot your I’s and cross your T’s. The following case out of Rapides Parish demonstrates what can happen when a fax filed lawsuit is not followed up with the mailed petition in the proper time.

The Plaintiff in this case, Brenda Quire, was a patient suing her former physician for alleged battery and was asking for alleged damages she incurred under a physician’s medical care. The original lawsuit and filing fee were not received by the clerk of court within the required period of time. In short, she missed the deadline and consequently her case was dismissed.

The Defendant, the physician, filed an exception of prescription requesting the court to dismiss the case, which the court granted. An exception of prescription is a motion filed asking the court to dismiss a lawsuit without probing into the underlying claims, and to demonstrate that the plaintiff has no right to bring such action because the time period elapsed. This is a legalese way of saying the court dismissed Ms. Quire’s claims because she filed her lawsuit past the deadline to file.

December 4, 2016

Lafourche Parish Sheriff’s Office Found Negligent in Causing a Woman’s Broken Arm in “Self Defense” Class

by Berniard Law Firm

police-5-1572837-1024x768 It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

December 2, 2016

Metairie Workers Compensation and Car Accident Lawsuit Shows How Courts Separate Injuries

by Berniard Law Firm

Picture-1854-e1467899109216-765x1024 Sometimes you have a run of bad luck. If your injured on the job then not long after you get into a car wreck it can be hard to pinpoint which incident caused your injuries. If you are unfortunate enough to be involved in this scenario make sure you have the best workers compensation lawyer you can get to help the court understand your work related injuries. The following case out of Metairie, Louisiana shows how one recent appeals court dealt with just such a factual scenario.

Leslie Nichols was a cosmetologist at the Elizabeth Arden counter at Dillard’s Metairie, Louisiana store. During her lunch break she slipped on the floor and fell. Rather than return to work after her fall she went home. The next day she went to an urgent care center and eventually was treated by her workers’ compensation doctor. She returned to work without restrictions, but a little over a week later she rode in the Orpheus Parade and attended the Orpheus Ball. She continued to treat for her injuries and on her way to a follow-up visit she was involved in a car accident. The accident further aggravated her injuries and rendered her disabled. Ms. Nichols sought compensation from for her injuries, including those aggravated by the car accident. Dillard’s argued that the car accident was an unforeseeable event causing aggravation of her pre-existing work place injuries, therefore, Dillards should not be responsible for those injuries as well.

At the original trial, the workers’ compensation court found there was no causal connection between her work injury and her disability, as it was a result of her car accident. Ms. Nichols filed for a new trial, and a second workers’ compensation court judge awarded Ms. Nichols damages by ruling the car accident and her original injury were causally connection. Dillard’s appealed the new judgment to the Louisiana Fifth Circuit Court of Appeal, seeking for reinstatement of the original judgment.